ORDER GRANTING PLAINTIFF'S MOTION FOR ALTERNATE
SERVICE ON JOHN DOE DEFENDANTS 1-5 IN PLAINTIFF'S FIRST
AMENDED COMPLAINT (DE 10)

ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

I.
Background

A.
Factual Background

The
instant lawsuit arises out of a September 24, 2016 house fire
that started in the basement of Mohanad Isso's house.
Plaintiff Farm Bureau General Insurance Company of Michigan
(“Farm Bureau”) insured Mr. Isso's house and
paid his insurance claim, thereby becoming subrogated to his
rights. According to the complaint, an investigation revealed
that the fire was caused by a toy known as a hoverboard,
which was located in Mr. Isso's basement. (DE 1.) Mr.
Isso reported to Farm Bureau that he purchased the
“Smart Balance Wheel” brand hoverboard off of
eBay approximately one or two years prior to the fire, and
that while he does not have records of the transaction, he
did locate the user manual for the hoverboard. However, the
user manual did not provide a manufacturer's name or
address. (DE 10 at 11.) Farm Bureau seeks to bring this
lawsuit against those Defendants who designed, manufactured
and sold the “Smart Balance Wheel” brand
hoverboard and its battery.

B.
Procedural History

Farm
Bureau searched the Internet to find the names or corporate
headquarters for the companies that manufacture, distribute
or sell the “Smart Balance Wheel” brand
hoverboard, and located several websites and Facebook pages
listing email addresses. However, Farm Bureau has had
difficulty locating the corporate name(s) or physical contact
information of the manufacturer(s). On July 21, 2017, Farm
Bureau filed a motion to amend its complaint and for
alternate service to name the defendants that appear to be
affiliated with the Smart Balance Wheel brand hoverboard, and
for an order allowing Farm Bureau to serve process by
alternate means: by email to the email addresses listed on
the company websites and by first-class mail to the
“billing address” identified on one of the
websites. (DE 10.) This motion was referred to me on August
1, 2017. (DE 11.)

On
October 2, 2017, the Court entered an Order granting Farm
Bureau's motion to amend the complaint and granting in
part and denying in part the motion for alternate service.
(DE 13.) The Court found that Farm Bureau established that
Defendants conduct business on the internet and via email,
and that service by email would not violate any international
agreement. However, the Court found that Farm Bureau had not
met its burden so show that the email addresses at issue have
been “sufficiently tested” to confirm they are
valid and thus “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their
objections.” (Id. at 7-11 (citing Mullane
v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950).) Accordingly, the Court ordered Farm Bureau to appear
for an evidentiary hearing to present evidence demonstrating
that each of the email addresses it requests to serve have
been “sufficiently tested” and therefore are
valid, and that service will comport with constitutional
notions of due process. (Id. at 11-12.)

C.
The October 25, 2017 Evidentiary Hearing

On
October 25, 2017, Farm Bureau's counsel appeared for the
evidentiary hearing. He was placed under oath and presented
testimony and evidence identifying the proposed Defendants
and the proposed contact information for each Defendant, and
regarding his efforts to demonstrate that the proposed email
addresses have been “sufficiently tested” and are
valid. He established that each of the proposed Defendants
Farm Bureau seeks to serve via email do business on the
internet and through email, including making their products
available for purchase online, and testified that the
websites found do not provide the formal name of the
manufacturer(s) or provide the physical contact information
for the manufacturer(s). Farm Bureau's counsel identified
the specific email address(es) associated with each proposed
Defendant and further detailed his efforts to verify that
each of the email addresses at which he seeks to serve those
Defendants is valid, including dates emails were sent to each
email address, and that emails mailed to each of the email
addresses in question were not returned as undeliverable or
did not “bounce back.” At the close of the
hearing, Farm Bureau was directed to: (1) file its Amended
Complaint identifying all proposed Defendants; (2) attempt to
send emails to each of the email addresses at issue again,
but requesting a “delivery receipt” and
“read receipt” for each; and (3) conduct a
“reverse lookup” for the telephone number
identified on the www.smartselfbalanceweheel.com/
website to attempt to obtain a physical address for that
Defendant.

D.
Farm Bureau's First Amended Complaint and Supplemental
Brief on its Request for Alternate Service

On
November 2, 2017, Farm Bureau filed its First Amended
Complaint identifying the five Defendants it seeks leave to
serve via alternate service, including providing the domain
name and associated email address for each John Doe
Defendant. (DE 15.)[1] Farm Bureau also filed a supplemental
brief in support of its motion for alternate service. (DE
17.) In that supplemental brief, Farm Bureau identified the
five Defendants in its First Amended Complaint that it
requests to serve via alternate service, and detailed the
requested alternate means of service for each Defendant.
(Id. at 1-2.) Farm Bureau also attached
counsel's second supplemental affidavit to its
supplemental brief. (DE 17-1.) In that affidavit, Farm
Bureau's counsel listed the specific email addresses
contacted for each Defendant, and explained that, in
compliance with the direction of the Court, he “turned
on the ‘delivery receipt' and ‘read
receipt' functions and sent emails to” each of the
four listed email addresses. (Id. ¶ 2.) For
each of those test emails sent, Farm Bureau's counsel
“received messages stating that the emails had been
delivered to those email addresses[, ]” but “did
not receive any ‘read' receipts.”
(Id.)[2] Counsel further “test[ed]”
whether the “delivery receipt” function worked
properly by sending a test email to a similar, but not
identical, email address. (Id.) In response to that
test email, counsel “received a message stating that it
was NOT delivered[, ]” “indicat[ing] that the
email addresses to which Farm Bureau asks to serve process by
email are currently receiving emails.” (Id.)

Farm
Bureau requests permission to serve the five “John
Doe” Defendants in its ...

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